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Decision No. 14,338

Appeal of CHRISTOPHER and GIGI B., on behalf of MICHAEL B., from action of the Board of Education of the City School District of the City of Oswego regarding student discipline.

Decision No. 14,338

(April 13, 2000)

Michael J. Stanley, Esq., attorney for respondent

MILLS, Commissioner.-Petitioners challenge the disciplinary measures imposed on their son, Michael, by the Board of Education of City School District of the City of Oswego ("respondent"). The appeal must be sustained in part.

During the 1998-99 school year Michael was a sixth grade student at respondent’s Charles E. Riley Elementary School. On May 10, 1999, Michael apparently became upset in the school cafeteria and stated that he wanted to put a bomb in the middle school. Another student who overheard Michael reported Michael’s statement to a teacher and then to the school principal. The principal then interviewed Michael and contacted petitioners to discuss the matter.

Michael was suspended from school for five days and returned to class on May 17, 1999. A superintendent’s hearing was held on June 11, 1999, at the conclusion of which the superintendent imposed anger management counseling for Michael. Petitioners appealed to respondent, which upheld the superintendent’s determination. This appeal ensued.

Petitioners allege that the superintendent acted in a hostile manner toward them at the disciplinary hearing. They request that the penalty of anger management counseling be reversed and that all references to this disciplinary infraction be removed from Michael’s record.

Respondent contends that the petition should be dismissed because it fails to set forth a clear and concise statement of petitioners’ claims and because it was not verified. Respondent further contends that its determination was appropriate.

Respondent contends that the petition was not verified. Commissioner’s regulation "275.5 requires a petition to be verified by at least one of the petitioners. The petition sent to my Office of Counsel contains a verification signed by one of the petitioners. While it is regrettable that respondent’s copy may not have included a verification, I will not dismiss the appeal on that basis (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 52, Decision No. 13,980; Appeal of a Student with a Disability, 37 id. 70, Decision No. 13,807).

Respondent also contends that the petition is deficient in form and content. A petition must contain a claim showing that petitioner is entitled to relief, a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioners’ claim and the act(s) complained of (8 NYCRR "275.10; Appeal of Brousseau, 37 Ed Dept Rep 295, Decision No. 13,862). In cases where petitioners are proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Brousseau, supra; Appeal of Bowers, 34 id. 603, Decision No. 13,424). I find that petitioners' claims and the relief requested are sufficiently stated in the petition to enable respondent to adequately address petitioners' claims in its answer. Because respondent has failed to establish that it was prejudiced by petitioners' drafting, I will not dismiss the appeal on that basis.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of B.B., supra; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of B. B., supra; Appeal of Alexander, supra). It is undisputed that Michael made the statement in question. I do not find a five-day suspension for such a serious infraction to be excessive. Therefore, I will not order that the record of the incident or the suspension be expunged from Michael’s record.

The anger management counseling portion of the penalty, however, is inconsistent with Education Law "3214, which limits penalties to suspension from attendance (Appeal of Cynthia and Robert W., supra;Appeal of Alexander, supra). A school district cannot condition a student’s return to school on participation in counseling services (Appeal of McMahon, et al., 38 Ed Dept Rep 22, Decision No. 13,976; Appeal of Cynthia and Robert W., supra; Appeal of Alexander, supra). Accordingly, I find respondent’s imposition of anger management counseling to be improper under "3214 and any reference to this penalty must be removed from Michael’s record.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the disciplinary records of Michael B. all references to anger management counseling.

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